On April 28, 2014, the United Church of Christ—joined by clergy from Lutheran, Baptist, Unitarian Universalist, and Jewish congregations—and six same-sex couples filed a lawsuit in the federal district court in Charlotte, North Carolina, challenging the constitutionality of the state’s ban on same-sex marriage. Similar to the 66 pending lawsuits in other jurisdictions across the country (including two lawsuits in the federal district court in Greensboro, North Carolina), these plaintiffs allege that North Carolina’s “Amendment One,” approved in 2012 by 61 percent of the state’s voters, violates the Due Process and Equal Protection Clauses of the U.S. Constitution. What makes this lawsuit unique, according to plaintiffs’ lawyers, in addition to the participation of a religious denomination as a plaintiff in a lawsuit challenging a same-sex marriage ban, is the claim that Amendment One violates the Free Exercise Clause of the U.S. Constitution.
In other words, along with the now familiar argument about equality under the law, plaintiffs in General Synod of the United Church of Christ v. Cooper contend that North Carolina’s ban on same-sex marriage violates their religious liberty. The specific articulation of this argument in court documents and statements to the press raises a number of new questions about the marriage equality movement and sharpens some existing ones.
At the press conference announcing the filing of the lawsuit, the Rev. Nancy Ellett Allison, pastor of Holy Covenant United Church of Christ (UCC) in Charlotte, said, “North Carolina’s laws prohibiting same-gender marriage designate some citizens as unfit for the blessings of God. We reject that notion. As all God’s children are welcome to receive the sacraments of communion and of baptism, so all of God’s children should be able to receive the sacrament of holy union and marriage.” While Allison’s proclamation has incontrovertible rhetorical power, the soundness of her legal and theological analysis is less certain.
As in almost every jurisdiction, clergy in North Carolina are, in effect, deputized to represent the state at marriage ceremonies, to receive marriage licenses issued by the state, and to return those licenses to the register of deeds so that they can be duly recorded. North Carolina law also states that any person “authorized to solemnize a marriage under the laws of this state who marries any couple without a license being first delivered to that person … shall … pay two hundred dollars to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor” (§ 51-7). Such a misdemeanor carries a penalty of up to 45 days in jail for the first four offenses and up to 120 days in jail for five or more offenses (§ 15A-1340.23). Plaintiffs in General Synod contend that this second provision criminalizes officiating at same-sex weddings, because the couples being married can never obtain the requisite license, thereby infringing on the religious liberty of the ministers to conduct such weddings and on the religious liberty of the couples to receive the blessings of their faith communities.
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